THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED v. MR. GODLOVE B. MILLER
(2013)LCN/6574(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 3rd day of December, 2013
CA/PH/281/2002
JUSTICES
EJEMBI EKO Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
Between
THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED Appellant(s)
AND
MR. GODLOVE B. MILLER
(Trading under the name and style of G. Milex Oil Pollution Central Services) Respondent(s)
RATIO
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE EXERCISE OF DISCRETION BY THE TRIAL COURT
The Appellant has not shown how erroneous the learned trial Judge was, when he proceeded to estimate the costs awarded. This Court will not interfere in the exercise of this discretion unless it is shown that the discretion was exercised in a manner manifestly wrong, arbitrary, reckless, injudicious or contrary to justice: IMONIKHE v. A.G., BENDEL STATE (1992) NWLR [pt.248] 396.
In the peculiar circumstance of this case the authorities of MALLAM IDI WURNO v. U.S.C. LTD (1956 – 1960) 1 NSCC 31; HAROLD v. SMITH 157 E.R. 1229 at 1231 and REWANE V. OKOTIE-EBOH (1956 – 60) 1 NSCC 135 at 139 will not avail the Appellant. PER EKO, J.C.A.
EJEMBI EKO, J.C.A. (Delivering the Leading Judgment): The notice of appeal at pages 72 – 75 of the Record of Appeal is directed against the Ruling delivered by the Rivers State High Court on 10th April, 2002. The Ruling (at page 66 of the Record) is herein reproduced, to wit:
“Ruling
There is no merit in this application as the defendant counsel from the records of proceedings was present at the hearing of the motion for judgment, and opposed as shown by paragraph 9 of the counter-affidavit. There is therefore a clear case of waiver on the part of the defendant who complains that the motion did not bear a date for hearing it. See the case of ONIAH v. ONYIA (1989) 1 NWLR [pt.99] at page 514 at 534. Besides the common feature running like a connecting thread in the Defendant’s affidavit is the element of delay as shown by paragraphs 10, 11, 18 and 19 of its affidavit. Application is dismissed there shall be cost of N10,000.00 to the plaintiff.
(SGD)
(HON. JUSTICE E. A. OLUKOLE)
JUDGE
10/4/2002.”
The ruling is an off shoot of the application to set aside the judgment delivered on 5th June, 2001. I find the proceedings of the 15th May, 2001 and 5th June, 2001 (pages 62 and 63 of the Record) germane. Accordingly, they are herein below reproduced as follows:
“BEFORE THE HONOURABLE JUSTICE E. A. OLUKOLE, JUDGE
ON TUESDAY THE 15TH DAY OF MAY, 2011
SUIT NO. PHC/1413/2000
BETWEEN:
GODLOVE B. MILLER
Vs.
SHELL PETROLEUM DEVELOPMENT COMPANY
Parties absent.
S. Biambo Esquire for the plaintiff.
G. Aitafo Esquire for the Defendant (hold Alize’s brief).
Mr. Aitafo argues a motion dated 31st July, 2000 asking for extension of time for Defendants to enter appearance; supports with an affidavit of 9 paragraphs. Rely on especially on paragraphs 4 and 5 and moves as per motion paper.
Mr. Biambo does not oppose.
RULING
Order as prayed. The defendant is granted two days to enter appearance.
The motion for judgment dated 18th October, 2002 is fixed for 5th June, 2000 for hearing.
There shall be N1,000.00 cost to the plaintiff.
(SGD)
(HON. JUSTTCE E. A. OLUKOLE)
JUDGE
15/5/2001.
RESUMED ON TUESDAY THE 5TH DAY OF JUNE, 2001.
Parties absent.
M. H. Majap Esquire for the plaintiff/Applicant.
G. I. Atafo Esquire for the Defendant/Respondent.
Mr. Majap argues a motion on Notice dated 18th October, 2000 asking for judgment pursuant to Order 27 Rule 2 (1) Rules of the High Court. Supports the motion with an affidavit of 10 paragraphs. Relies on all the paragraphs especially paragraphs 3, 5, 7 and 9. Moves as per motion paper.
Mr. Atafo says the claim is not for liquidated damage.
JUDGMENT
I disagree with the learned counsel for the Defendant that the relief sought in this case is not one of liquidated demand or debt. My paragraphs 8 and 9 of the statement of claim which stands unchallenged, the plaintiff satisfactorily completed the contract for which he submitted a bill for N9,714,999 (made up of contract sum and vat) to the Defendant. The defendant not having filed any defence, the plaintiff is entitled to final judgment pursuant to Order 27 Rule 2(1) of the Rules of the High Court. Judgment is therefore entered for the plaintiff (1) in the sum of N9,252,380 (Nine Million, Two Hundred and Fifty-Two Thousand, Three Hundred and Eighty Naira). (2) interest at the rate of 30% per annum on the said sum from 1st March, 1999 until the principal sum is finally liquidated.
There shall be N10,000.00 cost to the plaintiff.
(SGD)
(HON. JUSTTCE E. A. OLUKOLE)
JUDGE
5/6/2011
Having reproduced the proceedings antecedent to the ruling of 10th April, 2002, the subject of this appeal, it is my firm view that the appeal filed on 11th April, 2002 against the decision of 10th April , 2002 is certainly an interlocutory appeal; the ruling the subject of the appeal having not decided or determined the rights of the parties to the suit no PHC/1413/2000. The authority of OMONUWA v. NAPOLEON OSHODIN (1985) 2 SC 1 at 26 is quite apposite.
The appeal being interlocutory the appellant is enjoined by Sections 242 (1) and 241 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, to obtain prior leave of court to file grounds 1, 2 and 3 of the Notice Appeal (at pages 72 – 75 of the Record). The said three grounds of appeal are grounds of facts or mixed law and facts; and not grounds of pure law alone. It is trite that when the grounds of appeal are based on facts, or on mixed law and facts that they cannot, without leave first sought and obtained, be brought to this court by the appellant in an interlocutory appeal from a decision of the High court. In an interlocutory appeal, as the instant, where the grounds are based on facts, or on mixed law and facts; it is necessary for the appellant to first obtain leave before filing those grounds. See NIGERIA NATIONAL SUPPLY COMPANY LTD v. ESTABLISHMENT SMA OF VADUZ (1990) 11 – 12 SC 209.
By Section 241 (2) (c ) of the Constitution (supra) there is also no right of appeal, without leave of either the trial High Court or this court, against the “decisions of the Federal High Court or a High Court to the court of Appeal – as to costs only.” The 4th ground of appeal complaining that the “costs of N10,000.00 awarded to the Plaintiff/Respondent ” was excessive is caught by the provisions of Section 241 (2) (C ) of the Constitution (supra).
The four grounds of appeal (at pages 72 – 74 of the Record) without their particulars are herein below reproduced viz:-
GROUND ONE:
The learned trial Judge of the State High Court misdirected himself in law when he held:
“There is no merit in (the Defendant/Applicant’s) application as the Defendant counsel from the records of proceedings was present at the hearing of the motion for judgment and opposed, as shown by paragraph 9 of the counter affidavit. There is therefore a clear case of waiver on the part of the Defendant who complains that the motion did not bear a date for hearing it. see the case of ONIAH v. ONYIA (1989) 1 NWLR [pt.99] 514 at 534.”
GROUND TWO:
The learned trial Judge of the State High court misdirected himself in law when he held:
“Besides the common feature running like a connecting thread in the Defendant’s affidavit is the element of delay as shown by paragraphs 10, 11, 18 and 19.”
GROUND THREE: The refusal of the learned trial Judge of the state High court to grant the Defendant/Appellant’s application to set -aside the default judgment, is against the weight of affidavit evidence before the court.
GROUND FOUR: The learned trial Judge of the State High Court erred in law by awarding an excessive cost of N10,000.00 to the Plaintiff/Respondent when the circumstances of the case do not warrant such award of cost.”
It appears to me, and I so hold, that the four grounds of appeal filed without leave of court are incompetent. They are, each, accordingly struck out in accordance with Order 6 Rule 6 of the Court of Appeal, Rules, 2011. This should terminate the appeal wholly. I will however briefly consider the merits of the appeal.
The motion necessitating the ruling of 10th April, 2002 was no doubt a frivolous one. The proceedings of the court below at pages 62 and 63 of the Record show that the Appellant’s counsel was in court and infact participated in the proceedings when the application for judgment was moved, and judgment entered on 5th June, 2001. The learned trial Judge was therefore right and correct when, at page 66 of the Record, he held that:
There is no merit in this application as the defendant’s counsel, from the records of proceedings, was present at the hearing of the motion for judgment, and opposed as shown by paragraph 9 of the counter-affidavit.
It was on that finding that the court below proceeded further to find and hold that the conduct of the defendant (Appellant) amounted to waiver of his right, which therefore estopped them from complaining “that the motion (for judgment) did not bear the date for hearing it.” It is not enough for the appellant to allege that the motion had no date of hearing. He must show how that had occasioned any miscarriage of justice to him. In this case the appellant was given all the opportunity to put in his case. He however failed or refused to utilize the opportunity. He cannot be heard to complain now that he was denied fair hearing.
There is no appeal against the adverse finding of the court below that “the common feature running like a connecting thread in the Defendant’s affidavit is the element of delay as shown by paragraphs 10, 11, 18 and 19 of its affidavit”. Having not appealed this adverse finding the appellant is deemed to have accepted it, and that he does not complain about it. The finding remains extant and subsisting against the appellant. The same game of delay and frivolity also underpins this appeal. The ulterior purpose, in my view, is to frustrate the plaintiff/respondent, as judgment creditor, from the benefits or fruits of the judgment delivered in his favour on 5th June, 2001.
The facts of this case will not avail the appellant in the bid to set aside the judgment delivered on 5th June, 2001. The judgment cannot be “stigmatised with any blemish or one given in a hurry so that the trial court would turn to other matter before it feeling falsely contended that it has disposed of a day’s work”, as loudly submitted for the Appellant on the authority of OHA/EGBEMA/OGUTA LOCAL GOVERNMENT v. CHIEF WILSON ETITI (2001) FWLR (PT.45) 642 at 648.
It does not lie in the mouth of the Appellant to argue that he was not given “equal footing” with the respondent in this case; nor can the Appellant plead that he should not be punished for the error of his counsel. He engaged the counsel. The strategy adopted by the said counsel may be a disaster to the Appellant. The failure of strategy of his counsel can not avail the litigant to invoke the discretion of a court to set aside a decision rendered within its jurisdiction.
In arguing issue 3, on costs, the Appellant does not seem to have taken into consideration the provisions of Order 53 of Rivers State High Court (Civil Procedure) Rules, 1987. In every suit the costs of every proceeding is in the discretion of the court: Order 53 Rule 3. By Rule 7 of order 53 thereof: the principle to be observed in fixing the amount of costs is that the party who is in the right is to be indemnified for the expenses to which he has been necessarily put in establishing his claim, defence or counter-claim; the court taking into account all the circumstances of the case.
The Appellant has not shown how erroneous the learned trial Judge was, when he proceeded to estimate the costs awarded. This Court will not interfere in the exercise of this discretion unless it is shown that the discretion was exercised in a manner manifestly wrong, arbitrary, reckless, injudicious or contrary to justice: IMONIKHE v. A.G., BENDEL STATE (1992) NWLR [pt.248] 396.
In the peculiar circumstance of this case the authorities of MALLAM IDI WURNO v. U.S.C. LTD (1956 – 1960) 1 NSCC 31; HAROLD v. SMITH 157 E.R. 1229 at 1231 and REWANE V. OKOTIE-EBOH (1956 – 60) 1 NSCC 135 at 139 will not avail the Appellant.
On the foregoing stance I would have dismissed the appeal in its entirety. However, as the appeal is incompetent, being an interlocutory appeal and the grounds thereof were filed without previous leave sought and obtained, I hereby enter an order striking out the appeal under order 6, Rule 6 of the court of Appeal Rules.
The respondent, having been made to unnecessarily throw away costs in defending this appeal is entitled to costs. He filed brief of argument. Costs at N40,000.00 are hereby awarded to the respondent against the Appellant.
MODUPE FASANMI, J.C.A.: I had a preview of the lead judgment of my learned brother EJEMBI EKO J.C.A just delivered. I agree entirely with his reasoning and the conclusion arrived at.
The interlocutory appeal was filed without the leave of the court. It is grossly incompetent. It is hereby struck out under Order 6 rule 6 of the Court of Appeal Rules 2011. I abide with the consequential orders contained therein inclusive of costs.
STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading in draft, the judgment just delivered by my learned brother Hon. Justice Ejembi Eko, JCA.
I agree entirely with his reasoning and conclusion in this appeal. I also strike out this appeal for being incompetent.
I abide by the consequential orders made by his Lordship.
Appearances
F. N. Udekweleze, Esq.For Appellant
AND
I. Anazor, Esq. with A.C. Alisigwe Esq.For Respondent
